Neville Donohue v Vestamatic Australia

[2016] FWC 402

[2016] FWC 402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neville Donohue
v
Vestamatic Australia
(U2015/13822)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 JANUARY 2016

Application for relief from unfair dismissal.

[1] On 22 October 2015, Mr Neville Donohue made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] Mr Donohue advised that he commenced employment with Vestamatic Australia on 31 August 2015 and that his dismissal took effect on 8 October 2015.

[3] On 27 October 2015, correspondence was sent to Mr Donohue pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Donohue to advise the Fair Work Commission within 14 days whether he wished to proceed with his application. On the same day, an attempt was made to contact Mr Donohue by telephone, however, that was unsuccessful.

[4] On 12 November 2015, further correspondence was sent to Mr Donohue, again requesting that he advise the Commission whether he wished to proceed with his application. A voicemail was also left for Mr Donohue to contact the Commission about his application.

[5] On 1 December 2015, correspondence was again sent to Mr Donohue, which advised that unless advice was received from him within 14 days, his application would be dismissed. An attempt to contact Mr Donohue by telephone was also made that day.

[6] Mr Donohue, to date, has not responded to the Commission’s correspondence.

[7] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[8] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[9] In the circumstances of this matter, I am satisfied Mr Donohue has not completed the required minimum employment period and his application has no reasonable prospects of success.

[10] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[11] Consequently, the application is dismissed under section 587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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